Taking physicians out of the abortion decision

AB 154, a bill in the California Legislature that would allow nurse practitioners, midwives and physician’s assistants to perform some early abortions, won’t be controversial with most supporters of legal abortion. But it severs a connection between abortion rights and the practice of medicine that played an important role in the Supreme Court’s Roe vs. Wade decision legalizing abortion.

The supposedly indispensable role of the doctor in abortion decisions also has figured in the defense of abortion rights by politicians, including those who say the procedure should be rare -- such as Hillary Rodham Clinton.

Roe vs. Wade, handed down in 1973, was written by Justice Harry Blackmun, a former general counsel to the Mayo Clinic. Although Roe grounded the right of abortion in a constitutional guarantee of privacy, Blackmun’s opinion also emphasized that abortion was a medical decision.

“For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician,” Blackmun wrote, adding, “The decision vindicates the right of the physician to administer medical treatment according to his professional judgment.”

Legal scholars debate how important Blackmun’s Mayo Clinic connection was in the formation of his opinion, but there’s no doubt it was infused with deference to the quasi-religious authority of doctors. As Nan Hunter of the Georgetown University Law Center put it in an article about Blackmun’s opinion, the court “sought to entrust medicine with decisions which required normative rather than scientific judgments, under a mask of professional expertise.”

The emphasis on abortion as a decision made in consultation with a physician was intimately tied up with another idea: that abortion was an evil that could nevertheless be justified by extenuating medical circumstances. Hunter notes that in an interview for an oral history, Blackmun said: “I think to this day there ought to be a physician’s advice in there. I don’t believe in abortion on demand.” Even before Roe, the case for legalization often focused on “medically necessary” or “therapeutic” abortions.

The importance of the doctor’s role in the abortion decision also figures in political discourse. In 2008, Hillary Clinton was asked at a campaign event if she agreed that Americans on both sides of the issue should work together to try to reduce the number of abortions to zero. Clinton reminded her questioner that she thought abortion should be “safe, legal and rare, and by rare I mean rare.” She said abortion “should not in any way be diminished as a moral issue,” and portrayed the choice to have an abortion as a wrenching one for “a young woman, her family, her physician and pastor.”

That quotation just doesn’t sound the same when you substitute “physician’s assistant” or “nurse practitioner” for “physician.”